Is an ALJ an Officer or Employee? And What Difference Does It Make?

For more than a half century since the Administrative Procedure Act (APA) became law, everyone had assumed that a hearing examiner, whose title became Administrative Law Judge (ALJ) in 1978, was an employee, not an officer of the United States. Indeed, this belief predated the APA, as hearing examiners had been used by various agencies prior to the APA. Recently, however, that assumption has been questioned in a number of cases challenging the use of ALJs by the Securities and Exchange Commission (SEC).

The APA states that “each agency shall appoint” ALJs, leaving ambiguous how the agency appoints them. The SEC’s ALJs have been appointed upon recommendation by the SEC’s Chief ALJ to the agency’s Office of Human Resources, but if ALJs are inferior officers rather than employees, this method of appointment would be invalid under the Appointments Clause of the U.S. Constitution, which would require them to be appointed by the head of the department, which in this case would mean the SEC itself. In Lucia v. SEC, the D.C. Circuit held that the ALJs are employees, because, as it interpreted the Supreme Court’s decision in Freytag v. Commissioner of the IRS, the ALJs do not have the power to finally bind the agency – all of their decisions must be ratified (or reversed) by the SEC itself. The Tenth Circuit reached a different conclusion in Bandimere v. SEC, interpreting Freytag to hold that persons who possess significant duties and discretion, as evidenced by the ability to take testimony, conduct trials, rule on the admissibility of evidence, and enforce compliance with discovery orders, are officers, not employees. Monday the Supreme Court will hear argument in Lucia to resolve this issue.

Many commentators agree with the Tenth Circuit’s reading of Freytag, and the SEC itself has switched positions from saying its ALJs are employees to saying that they are inferior officers, and it has newly appointed its ALJs. If the Court finds that ALJs are inferior officers, which unless it somehow distinguishes its language in Freytag it seems bound to do, it will raise a host of additional questions, which the Court may or may not address. First, what would this say about the thousands of non-ALJ hearing officers in various agencies, including the 334 immigration judges who engage in collective bargaining with their employing agency? They too have the ability to take testimony, conduct trials, rule on the admissibility of evidence and otherwise act in almost an identical fashion to ALJs. But for many of these administrative judges there is no statutory provision authorizing their appointment by anyone, so that until legislation was enacted their appointment would have to be by the President and confirmation by the Senate.

Second, and more importantly, would this make the for-cause removal protection for ALJs unconstitutional? In Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB), the Supreme Court held that inasmuch as members of the SEC, who were considered to have for-cause removal protection, could only remove members of the PCAOB for cause, the PCAOB members’ for-cause removal protection was unconstitutional. The Court viewed two-levels of for-cause removal protection as depriving the President of adequate ability to take care that the laws be faithfully executed. Precedent approved of one level of for-cause removal protection, but two levels were just too much. The Court’s solution was to declare the PCAOB members’ removal protection unconstitutional, so that the SEC could remove them at will. SEC ALJs (and all ALJs in independent regulatory agencies) have arguably three levels of removal protection. First, they can only be removed if their agency (whose members can only be removed for cause) files a complaint with the Merit Systems Protection Board (whose members can only be removed for cause), which has the power to remove ALJs – for cause. If this were seen as unconstitutional, then – using the same remedy as in Free Enterprise Fund – ALJs removal protection would be invalid so that they could be fired at will. Of course, a founding principle involved in the creation of ALJs was that they would be independent of their agency, and it was precisely for that reason that agencies were not allowed to rate, reward, punish, or remove their ALJs. To subject them to removal-at-will by their agencies would destroy that independence.

One simple way to avoid this outcome would be to distinguish Free Enterprise Fund by noting that the PCAOB, while it had some adjudicatory responsibilities, also had significant policymaking responsibilities. ALJs, however, only have adjudicatory responsibilities. In Wiener v. United States, the Court said that the members of an agency whose sole function was to “adjudicate[] according to the law that is, on the merits of each claim, supported by evidence and governing legal considerations, by a body that was entirely free from the control or coercive influence, direct or indirect,” could not be removed at will. The same concept should apply to ALJs; the President has no need to have significant control over ALJs, when it would be improper for him to interfere in the adjudication of their cases.

The Solicitor General has suggested a different solution. To save the constitutionality of the for-cause removal protection, in his brief before the Court he is arguing that “for cause” should be broadly construed. That is, it would permit an agency to remove an ALJ for personal misconduct or for failure to follow lawful agency directives or to perform his duties adequately. Thus, agency heads would be able to remove ALJs who refuse to follow agency policies and procedures, who frustrate the proper administration of adjudicatory proceedings, or who demonstrate deficient job performance. He argues that this would provide adequate independence to ALJs in making their adjudicatory decisions but would allow for appropriate executive oversight, thereby safeguarding the President’s power to control and supervise the Executive Branch. Several commentators have suggested that such an interpretation of “for cause” would effectively eliminate any protection for ALJs, and others have gone further to say that this argument is a stalking horse for removing special counsel Robert Mueller, who can only be removed for cause under Department of Justice regulations.

Of course, if the Court finds that ALJs are mere employees, all these questions go away. That by itself may prove a powerful incentive to reach such a finding, and as argued by the amicus appointed by the Court to defend the D.C. Circuit’s decision and an amicus brief on behalf of several administrative and constitutional law professors, there are substantial bases for a conclusion that ALJs are employees. Even if the Court finds ALJs to be inferior officers, one might imagine that the Court will take the narrowest approach, having the least disruptive effect on government as we know it, as it did in Free Enterprise Fund. But then, all things are possible.

Twenty Social Scientists File Amicus Brief in School Discipline Case Using Implicit Bias Research to Reclaim 14th Amendment Protections Against Discrimination

Latino and Black students and their families and local community groups reached a settlement with the Kern High School District (KHSD) about their disproportionate discipline and transfer policies. However, the plaintiffs are appealing the dismissal of the California Department of Education from the lawsuit, arguing that the CDE failed in its independent oversight responsibilities by not acting to remedy the disproportionate discipline.

The state allowed the school district to suspend and expel Latino and Black students in disproportionate numbers. The school reported the highest number of expulsions of any district in the state of California, including school districts with much larger enrollment. KHSD’s average expulsion rate for White students was 18.70 per 1,000 students; for Latino students, 65.85 expulsions per 1,000 students (20.84% higher than the average rate for all students and 352% higher than the average rate for White students); and for African-American students, 110.21 expulsions per 1,000 students (102% higher than the average rate for all students and 589% higher than the average rate for White students).>

The CDE wants to evade its responsibility to provide a high-quality education to these students by asserting that it had no intention to discriminate and no oversight responsibility for this disproportionate discipline. This fig leaf is justified by outmoded Supreme Court law first articulated in the case Washington v. Davis that only intentional bias motivated by racial animus can be considered an equal protection violation. Social scientists and neuroscientists have shown that implicit bias, racial anxiety, and stereotypes are more likely to influence judgment and decision-making when there is discretion.

In October 2017, the plaintiffs filed their opening brief in an appeal against the California Department of Education, which was dismissed as a defendant by the trial court, arguing that the Department must fulfill its independent constitutional and statutory responsibility to ensure that California schools do not discriminate against children of color.

This week, Bakersfield attorney Christie Norris and Berkeley Law dean Erwin Chemerinsky filed an amicus brief in the appeal on behalf of 20 social scientists, academics, and advocates arguing that the California Department of Education should be held accountable for their failure to act.

The state and other entities “allowed the existence of an environment in which implicit bias and staff discretion combined to produce harsher disciplinary outcomes for students of color across the district in violation of their rights,” stated the brief, citing evidence of racial disparities in student discipline and inadequate institutional response. “Disparate impact as a way of proving discrimination is essential because of the evidentiary problems inherent in requiring proof of an expressed purpose to discriminate.”

Erwin Chemerinsky, Dean of Berkeley Law: “Challenging the outdated intent standard articulated in Washington v. Davis is essential if courts are to remain the protectors of rights in our society. Social science has proven that much discrimination is the result of unexamined stereotypes and unacknowledged bias. Having to prove that discrimination is the result of racial animus or is intentional will allow much discrimination to evade judicial scrutiny. That is why I co-authored this amicus brief.”

Dr. Victoria C. Plaut, Professor of Law and Social Science at UC Berkeley: "Social science research over the last several decades has recognized the impact that implicit bias, stereotyping, and racial anxiety can have on children of color in discretionary discipline settings."

Caroline Fredrickson, President of American Constitution Society for Law & Policy: “The amicus brief is a valuable contribution to expanding efforts to reclaim our 14^th Amendment protections. It’s clear that the ‘intent standard’ is outdated and the brief illustrates that point with examples of implicit bias and other mind science concepts. Litigators, judges, law professors, and academics will find the brief useful and worth citing.”

Public schools continue to be plagued by disparities in how students are disciplined by teachers and administrators. These problems are often caused by implicit biases that are unconscious yet no less offensive to Equal Protection norms than explicit or intentional forms of discrimination.

Building on established social science research, the amicus brief summarizes empirical findings on administrative discretion and implicit bias to demonstrate that the racial disparities in school discipline in Kern County violate the Constitutional rights of students of color.

The amicus brief cites scientific research highlighting the extent to which such unintentional disparate outcomes harm children, thus limiting their educational opportunities, in violation of the Equal Protection Clause. The California Department of Education’s failure to properly oversee and remedy this situation should give rise to a judicial intervention.

About the Lawsuit

The 2017 settlement with the Kern High School District (KHSD) Board of Trustees was the result of a three-year court battle to stop years of discriminatory discipline practices that deprived African American and Latino students of their right to an education.

The plaintiffs – Latino and Black students enrolled in the Kern High School District, together with their parents and community activist organizations Dolores Huerta Foundation, National Brotherhood Association, and Faith in Kern -- were represented by a coalition of civil rights lawyers, including California Rural Legal Assistance, Inc. (CRLA), MALDEF (Mexican American Legal Defense and Educational Fund), Equal Justice Society, Greater Bakersfield Legal Assistance, Inc. (GBLA), and Wilson, Sonsini, Goodrich & Rosati, P.C.

The settlement, the first of its kind in California, included an immediate change to discipline practices and an acknowledgment by the school district that students of color face higher rates of discipline than white students. KHSD agreed to implement major policy changes to reduce the disproportionate suspensions, expulsions and involuntary school transfers of African American and Latino students.

About the Discriminatory School Discipline Practices

The Kern High School District, located in California’s Central Valley, has a student population that is 62 percent Latino and 6.3 percent African American. Over the last five years, discriminatory school assignment policies have made it far more likely for Latino and African American students to be suspended, expelled, and assigned to alternative schools operated by the Kern High School District or Kern County Office of Education.

At the time of the lawsuit, the enrollment of African Americans and Latinos in these alternative schools was much higher than their enrollment in the general school population. These students of color are receiving unequal and inadequate education, and the CDE had the power and responsibility to intervene, but did nothing.

The amici curiae included:

Dr. Modupe Akinola, Sanford C. Bernstein and Co Associate Professor of Leadership and Ethics at Columbia Business School.
Dr. Elizabeth Aries, Clarence Francis 1910 Professor in Social Sciences (Psychology) at Amherst College.
Dr. Laura Babbitt, Tufts University.
Dr. Michael Bader, assistant professor of sociology at American University.
Dr. Courtney Bonam, Assistant Professor of African American Studies and Psychology at the University of Illinois at Chicago.
Dr. Meg A. Bond, Director of the Center for Women & Work and a Professor of Psychology at the University of Massachusetts Lowell.
Kelly Capatosto, Senior Research Associate at the Kirwan Institute for the Study of Race & Ethnicity.
Dr. Camille Z. Charles, Walter H. and Leonore C. Annenberg Professor in the Social Sciences, and Professor of Sociology, Africana Studies and Education at the University of Pennsylvania.
Dr. Stephanie A. Fryberg, Professor of American Indian Studies and Psychology at the University of Washington.
Cheryl. R. Kaiser, Professor and Chair of the Department of Psychology at the University of Washington.
Garrett Pace, doctoral student at the School of Social Work and Department of Sociology at the University of Michigan.
Dr. Thomas Pettigrew, Professor Emeritus of Social Psychology at the University of California, Santa Cruz.
Dr. Victoria C. Plaut, Professor of Law and Social Science and Affiliated Psychology Faculty at the University of California, Berkeley.
Dr. Jennifer A. Richeson, Phillip R. Allen Professor of Psychology at Yale University.
Michael Rocque, assistant professor of Sociology at Bates College.
Dr. Denise Sekaquaptewa, Professor and Associate Chair of the Department of Psychology, University of Michigan.
Kyle Strickland, Senior Legal Analyst at the Kirwan Institute for the Study of Race & Ethnicity.
Dr. Linda R. Tropp, Professor of Social Psychology in the Department of Psychological and Brain Sciences and Faculty Associate in the School of Public Policy at the University of Massachusetts Amherst.
Curtis M. Williams II, Ph.D. candidate in Public Affairs at Rutgers University- Camden.
Language & Culture Worldwide, Language & Culture Worldwide, a global consulting firm.

In Re the Cohen Raid: The Attorney-Client Privilege & Crime Fraud Exception

The American political and legal scenes continue to be roiled by the FBI’s execution of a search warrant on Donald J. Trump’s personal attorney Michael Cohen’s legal office and residential hotel room. In response, President Trump tweeted “Attorney-client privilege is dead!” An FBI raid of an attorney’s office raises sticky issues related to the attorney-client privilege and litigation work product—all the more magnified in the political glare associated with one of the President’s longtime attorneys. However, the privilege has never applied to communications furthering ongoing or future criminal conduct, or business conversations unrelated to the provision of legal advice. Further, as Sara Kropf explains, the Department of Justice has exacting procedures—apparently followed in this case—designed to protect client equities in validly privileged materials. For these reasons, President Trump’s and Mr. Cohen’s attorneys are unlikely to prevail in their effort to obtain exclusive privilege review in the aftermath of the raid.

Attorney-client privilege is a foundational common law doctrine designed to promote candor and trust between a lawyer and their clients by shielding their confidential communications from disclosure. Edna Selan Epstein’s book published by the ABA is the gold standard on the doctrine. The traditional elements of attorney-client privilege are: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining, or providing legal assistance to the client.

The threshold question in the Cohen matter is whether the attorney-client privilege would apply to each conversation. Being a business advisor or personal “fixer” does not create an attorney-client confidence unless the conversation specifically pertains to legal advice. There are apparently significant questions about the nature of Mr. Cohen’s role with respect to his three identified clients—President Trump, Elliott Broidy (a former Republican National Committee finance committee member), and Sean Hannity (a Fox News personality). The FBI’s review team—and ultimately the court—will have to address the question of Mr. Cohen’s role as to specific communications in light of the court representations made by Mr. Cohen and his clients, their public statements, and the nature of the documents in federal custody.

Even if the attorney-client privilege would otherwise apply, the crime-fraud exception may render the communications discoverable by federal law enforcement. In the Russian election interference investigation, Special Counsel Mueller overcame an attorney-client privilege objection to obtain an order requiring grand jury testimony from a lawyer for former Trump campaign aides Paul Manafort and Rick Gates. There, Chief Judge Beryl Howell of the United States District Court of the District of Columbia applied the crime-fraud exception to pierce the attorney-client relationship. The exception allows for discovery of attorney-client communications where the client obtained an attorney’s assistance in the furtherance of criminal or fraudulent activity. The court found that there was sufficient evidence that the attorney had been used as a conduit to pass false information to the Department of Justice.

Similarly, if prosecutors made out a prima facie showing that Mr. Cohen’s communications with a client were used to facilitate a crime, the privilege would not apply. Mr. Cohen is reportedly under investigation for potential bank fraud, money laundering, and campaign finance violations. For example, if there were a conspiracy involving an attorney and a client to conceal the true source or intended use of funds from a federally insured financial institution in order to help secure financing for a “hush money” payment, there would be no privilege.

At this point, both Mr. Cohen’s legal team and the Manhattan federal prosecutors have submitted potential special master candidate names to Judge Kimba Wood as she considers how to proceed. It will be interesting to see what comes of the legal status, and potentially the contents, of these materials seized from Mr. Cohen.

Trump’s Commitment to a Renewed War on Drugs

Thanks to President Trump, Attorney General Sessions and some in Congress, the opioid crisis has kick-started a War on Drugs reboot. In March Trump outlined his administration’s blueprint for confronting the public health emergency instigated by skyrocketing opioid overdose deaths, emphasizing a highly punitive response: “If we don’t get tough on the drug dealers, we’re wasting our time… and that toughness includes the death penalty.”

There is no doubt that we are in the eye of a drug crisis. The Centers for Disease Control and Prevention (CDC) reports that 63,632 people died in 2016 from a drug overdose, a 21 percent increase from 2015. Since 1999, the death toll from drug overdoses has grown to over 600,000. About two-thirds of these deaths involved an opioid. These stark statistics deserve national attention and action by the nation’s leaders, but the tragic consequences of the opioid crisis are an indictment of failed drug policies that for too long have emphasized investments in incarceration over treatment.

At the federal level those policies are epitomized by the mandatory minimum drug sentences enacted during the 1980s that are the harshest in the country. People convicted of drug offenses already constitute half of the Bureau of Prisons population and are serving an average of 11 years in prison. The racial disparity within this population is profound despite evidence that all racial and ethnic groups engage in illicit drug activities at similar rates. Indeed, the excessive imbalance in federal drug sentencing laws has led to important bipartisan efforts at reform, including Senate Judiciary Chairman Chuck Grassley’s Sentencing Reform and Corrections Act which seeks to lower mandatory minimum drug sentences.

The President’s pronouncement in support of increasing punishments for drug offenses, including the death penalty, provoked immediate condemnation from faith organizations, civil rights and legal groups and treatment providers. A letter sent to the President in response was signed by over 60 organizations. It stated:

[R]atcheting up already tough sentences for people with drug convictions will produce little public safety benefit while carrying heavy fiscal, social, and human costs. Many people entering the criminal justice system are in the lower- and middle-levels of a drug operation. Incarcerating these individuals often results in their being replaced by other sellers willing to fill their roles, and does nothing to address the substance use disorders that users, and many sellers themselves, struggle with.

The Attorney General responded to the President’s call for expansion of the death penalty with a directive to Department of Justice prosecutors. At the federal level a death penalty statute for drug kingpins operating with very large quantities of drugs was enacted in 1994 but has never been used. Legal scholars contend it is unconstitutional. Nonetheless, Sessions announced that “this administration will not hesitate to pursue the maximum sentences allowed by law, including the death penalty" in combating opioids. The move at DOJ builds upon last year’s upending of the Obama-era Smart on Crime Initiative. Prosecutors now must pursue the most serious charges and sentences in all federal cases, including drugs.

In a rebuke of Grassley’s consensus driven reform, a Senate Judiciary subcommittee hearing on fentanyl in April highlighted new legislation from Republican Senators John Kennedy, Tom Cotton and Lindsey Graham that would dramatically lower the quantity of fentanyl required to trigger a mandatory minimum. In many cases just trace amounts of fentanyl or its analogues mixed with other substances could result in five or 10 years in prison.

At a press conference announcing the bill, Graham – a leading supporter of crack cocaine sentencing reform and the Sentencing Reform and Corrections Act – changed course by calling for substantially increasing sentences for fentanyl. Moreover, he announced plans to work with Senator Cotton “to explore the possibility of even stronger penalties—that could include the death penalty if the fentanyl results in someone’s death…. Increasing these mandatory minimums is well-justified.”

In advocates’ letter to Trump urging investment in treatment and prevention of substance use disorders, they pointed to the large gaps in access to medically assisted treatments which are found to be most effective in addressing opioids. “One study found that just 21.5% of people with opioid use disorder received any treatment between 2009 and 2013—including non-professional treatment such as self-help groups. Surveys reveal that one-third of people with substance use disorder did not seek out professional treatment because they lacked health care coverage or could not afford the cost.”

The War on Drugs is decades old and the harsh punishments it has brought about have been unable to prevent the opioid crisis. Reinvigorating this war with promises of more death sentences is both morally offensive and practically unsound. Rather, what we need is comprehensive investment in community health, expanded economic opportunity, and alleviating despair among marginalized populations. Officials should not see this public health crisis as an invitation to exacerbate mass incarceration.

Kara Gotsch is Director of Strategic Initiatives for The Sentencing Project, a national criminal justice research and advocacy organization. Follow her on Twitter at @KGotsch.

A Long Winding Path to Rosenstein’s Replacement

Reworking the Department of Justice’s senior leadership team is a lot harder than deploying a catch phrase in a reality TV show. “You’re fired,” works when people have contracts that allow termination at will (and in exchange for ratings).

It does not work smoothly when the employee at issue is Rod Rosenstein, the Senate-confirmed number two at the Department of Justice. There are no TV cameras at Main Justice. But there are battalions of lawyers all over D.C. ready to pounce on the smallest legal misstep.

An effort by President Trump to fire Deputy Attorney General Rosenstein and sub in a pliable replacement who will fire or hobble Special Counsel Robert Mueller is complicated. It can be attempted by following one of two paths.

The first uses provisions of the Federal Vacancies Reform Act (5 U.S.C. 3345 et seq.) to immediately insert someone into the Deputy Attorney General slot to assume oversight of the Mueller investigation.

The second follows normal Justice Department procedure and devolves power over the Special Counsel to the next person in the DOJ line of succession after Rosenstein.

Both paths, I think, ultimately lead to Noel Francisco.

The first path, the Vacancies Reform Act, has two big boulders in the way.

It’s an open question whether a firing creates a “vacancy” fillable under the act. There is conflicting opinion on this. The only way to resolve it is to go to court. That means legal uncertainty: not the clear assertion of control over Mueller that Trump wants.
It’s also an open question whether an Acting Deputy Attorney General can also serve as the Acting Attorney General at the same time. I call this the “double acting” question. DOJ history suggests it rejects “double actings.” (Remember Rosenstein appointed Mueller in his capacity as Acting Attorney General due to Jeff Sessions’ recusal from the matter). If DOJ does reject “double actings,” then we end up with Francisco next in line to oversee Mueller. But who knows for sure. There are no written rules on this.

The second path is the normal DOJ line of succession. That takes us to Francisco again.

It’s a long and winding path. Here’s a chart that might help figure it out.

Non-Profit Turns to Crowd-Sourcing to Give Sunshine Laws New Impact

*This is part of ACSblog's Symposium on Whistleblowers.

“The purpose of the [Freedom of Information Act (FOIA)] is to protect the public from secret government activity[,]” announced the South Carolina Supreme Court in S.C. Tax Comm'n v. Gaston Copper Recycling Corp., a landmark public records case brought to resolve the public’s right to review tax commission records explaining why a corporation received a massive property tax reduction to the detriment of local schools. Sunshine laws have long been prophylactic, but current events have rekindled the public’s interest in knowing its government’s business. One South Carolina-focused non-profit saw a need and moved to fill it. Public Access to Public Records(PAPR) is dedicated to obtaining public records through FOIA requests and posting the records in an online, searchable database. Led by two former newspapermen and a lawyer, the organization’s first outing—a request for financial records from a local prosecutor’s office—has proven eventful.

About a month after PAPR began posting the 20,000 records (and counting) online, The Post and Courier, a Charleston, South Carolina paper, took notice and reported that state prosecutor, Dan Johnson, had “racked up thousands of dollars in charges” on luxury Uber rides, Major League baseball tickets, and private club memberships. Soon, The State, a Columbia, South Carolina newspaper, joined the story, with local television affiliates following suit. Two weeks into the story, after reports detailed public dollars spent on travel, meals, parties, gym memberships, and charitable donations, The State reported the FBI had joined state police in investigating the prosecutor’s spending.

This crowd-sourcing experiment has sparked a newspaper war (in the best possible sense) and highlighted timely lessons about our need for greater public access. According to the March 22, 2018 edition of the South Carolina Press Association’s newsletter, the record disclosure has prompted 16 different news reports. Several more followed and, as this post was being written, the Post and Courier corrected its earlier reporting based on newly reviewed records indicating Johnson paid his brother $6,000 to deejay office Christmas parties, “twice the amount previously reported by the newspaper.” More broadly, the frenetic volume of content generated about the Johnson story is evidence of something missing before it: data. At all levels, our government produces a vast amount of information while conducting the public’s business. As electronic communication has become the norm, this information has become more voluminous, but less costly to generate, maintain, and publicly disclose. While recent amendments to South Carolina’s FOIA have sought to push down disclosure costs by emphasizing electronic record disclosure and cabining in paper copy costs, press advocates and good-government watchers are wary that governments turn to new obstacles, like redaction costs, to block disclosure. In short, the rise of electronic recordkeeping has not ameliorated the need for a willing litigant to push back against unreasonable barriers to public access.

The responsiveness of South Carolina news outlets to the Johnson story exposes one of their vulnerabilities—a relative lack of access to public information. Record requests cost time and money, while a dwindling number of reporters in desiccated news rooms face daily pressure to generate content. This leaves scant time and fewer resources to collect and catalogue public records in service of a bigger story that may never come to fruition. Newsrooms are likewise judicious in their use of limited litigation resources and likely not to litigate an otherwise winning public disclosure dispute where the underlying story may not grab headlines or generate clicks. For the projects it pursues, PAPR’s prerogative is to enforce sunshine laws and promotes public awareness of government action, in part by accepting public suggestions and tips via an anonymous online submission page. To this end, less notorious projects are proving just as important, like a records request prompting the state attorney general to agree to search, retrieve, and disclose all public records from his private email account after one of those public-private records became the subject of a recent news report.

“Bookshelves in the United States and Europe are starting to sag under the weight of new volumes analyzing democracy’s troubled state[,]” remarked one reviewer of the latest epistle warning of liberalism’s retreat. As I have written elsewhere, our commitment to evidenced-based reasoning and the rule of law appears, at times, questionable. Recent news reports about Sinclair media demonstrate our collective resolve for truth is further diminished by increasingly corporate newsrooms. And, yes, as the recent state Supreme Court decision in Brock v Town of Mount Pleasant reminds us, secret public meetings and illegal record destruction persist. Somehow the national discussion of this malaise has not coalesced around many solutions. PAPR’s work on records access is a practical retrenchment in support of open government. Fractured media habits undermine national discussions about shared priorities. But, the Johnson story suggests an appetite for a broader arc and deeper dive in matters of public concerns. This proposition has proven true with national stories as exemplified by the New York Times and Washington Post’s recent work on l’affaire Russe. But at the state and local level, where fewer resources are available to pursue long-running inquiries or massive document dumps, PAPR is stepping in to shine a light on the problem.

Chris Kenney is an associate at Richard A. Harpootlian, P.A. in Columbia, South Carolina where his practice includes whistleblower, class action, personal injury, wrongful death, complex business litigation, and criminal defense work. He, along with Dick Harpootlian, represents Public Access to Public Records (PAPR).

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